Bush authorized warrantless phone, email tracking of US residents

[JURIST] A 2002 Presidential order issued in the aftermath of 9/11 authorized the US National Security Agency (NSA) [official website] to secretly monitor the international telephone calls and international e-mail messages of possibly thousands of US residents without warrants over the past three years, according to officials quoted in an extensive New York Times report Friday. The purpose of the order was to track possible so-called "dirty numbers" to al-Qaeda in an attempt to uncover and destroy terrorist plots. Warrants are still required for communications that are solely domestic in nature, but some officials said the domestic surveillance is pushing the limits of the Fourth Amendment, especially since the NSA has traditionally functioned only to spy on overseas communications.

Warrantless wiretaps were the issue of a 2002 case before the Foreign Intelligence Surveillance Court of Review. In the first appeal [text; FindLaw commentary] from the Foreign Intelligence Surveillance Court (FISC) to the Court of Review since the passage of the Foreign Intelligence Surveillance Act (FISA) [text; FAS backgrounder], the Government argued [appeal, text] that FISC erred when it partially denied authorization for electronic surveillance under FISA. In a supplemental brief [text] the Government stated:

the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority.
The Court was persuaded by this argument and in its opinion [text; PDF] concluded that FISA, as amended by the USA Patriot Act [PDF text; JURIST news archive] could permit wiretapping surveillance without a warrant without falling foul of the Fourth Amendment. The Court relied on a US Supreme Court case, US v. US District Court (Keith) [opinion, text] which held that a lesser standard for searches and seizures could be appropriate if national security was at stake.

The White House asked the New York Times not to publish its findings citing concerns that the article would jeopardize current terrorist probes.

8:15 PM ET - Senate Judiciary Committee Arlen Specter Friday called any grant of powers to the NSA to spy on Americans "inappropriate" and promised hearings on the issue in the new year. AP has more.

8:23 PM ET - AP is reporting that President Bush has personally authorized secretive eavesdropping in the United States more than three dozen times, according to senior intelligence officials.

 

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